Last Updated: June 11, 2024
The following TERMS & CONDITIONS (“Terms & Conditions”) are a legal and binding agreement between you and BrainSpark LLC, (“Company,” “we,” “our”, or “us”), governing (a) your online use of our websites, including www.brainsparklms.com, digital media, and mobile or web applications (collectively, the “Site”) and (b) your general access to and use of our document digitization and cloud storage solutions available through the Site (our “Services”). By accessing or using our Site or Services or by clicking “I accept” to the Terms & Conditions when this option is made available to you, you accept and agree to be bound by these Terms & Conditions, including the Privacy Policy linked below, and affirm that you are of legal age to enter into a binding agreement with the Company.
PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE YOU ACCESS OUR SITE, REVIEW OUR SERVICES, OR PURCHASE, TEST, OR USE OUR SERVICES ONLINE. THESE TERMS & CONDITIONS GOVERN YOUR RELATIONSHIP WITH THE COMPANY FOR ANY SITE VISITS OR OTHER TRANSACTIONS WITH THE COMPANY UNTIL SUCH TIME AS YOU ENTER A SEPARATE MSA WITH US THROUGH THE SUBSCRIPTION PROCESS.
We may revise and update these Terms & Conditions from time to time at our sole discretion. All changes are effective immediately when we post them to our Site, and the changes apply to all uses of the Site and general requests for Services made by our customers thereafter. However, any changes or modifications to these Terms & Conditions will not apply retroactively. In addition, changes to these Terms & Conditions will not impact the binding effect of our separate MSA or services agreements (each, an “MSA”) with you or any other client.
2.1 Access Grant. The Site is being made available for your personal use only for browsing, considering our Services, digitizing and storing documents, and communicating with us. Subject to these Terms & Conditions, we grant you a limited, non-exclusive, non transferable, and revocable right of access or license, as applicable, to: (A) download, install, and use the Site for your personal use on any mobile device or computer owned or otherwise controlled by you; and (B) test, access, review, and use for your personal use on your mobile device or computer the content, features, functionality, and Services hosted on our Site. The grant of rights under this Section, however, do not supersede or amend any binding terms between us and you in a separate MSA.
2.2 Availability and Access. From time to time, at our discretion, we may restrict your access to certain portions of the Site, revoking the rights of access and license grants described in Section 2.1 above. We reserve the right to withdraw or amend any of the offers, Service details and descriptions, and other material we provide to you on our Site, at our sole discretion and without notice (subject only to the terms of any stand-alone MSA or binding agreement with you). We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period.
2.3 Account Security. If you choose to create an online account with the Company as part of your online requests for Services or general use of the Site, you are solely responsible for retaining all login information and account names. You acknowledge that your account is personal to you, and you agree not to provide any other person with access to portions of your account containing your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password, or any other breach of security. Please exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your secure information.
We have the right to disable any username, password, or other identifier at any time, at our sole discretion for any or no reason, including if you have violated any provision of these Terms & Conditions.
2.4 Privacy. Your privacy and the protection of the information you may submit through the Site are important to the Company. To access our Services or register an account with us, you may be asked to provide registration details (for example, you or your entity’s email address, formal legal name, and phone number) or other identifying information. A condition of your use of the Site is that all the information you provide to us or through the Site is correct, current, and complete. If you are a natural person visiting the Site, all information you provide to register with or use our Site is governed by our “Privacy Policy” (available at https://brainsparklms.com/legal/privacy-policy).
The Site (including all content, Service offerings, underlying rights to Services, source code, communications, features, software, text, published works, displays, images, sounds, video, graphics, designs, and online formatting) are owned by the Company, its licensors (if any), or other providers of such material and are protected by United States and international copyright, trade dress, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Use of any content or material on the Site without prior written authorization by the Company is strictly prohibited. We stress that the value of our Services is based, in large part, on the unique works of authorships, trade secrets, or unique coding represented in those business solutions we deliver. As such, we will pursue all necessary action to protect the rights inherent in those Services.
These Terms & Conditions permit you to use the Site for your personal use (according to Section 2.1 above), including for Service requests and account access. Accordingly, you must not unlawfully reproduce, distribute, modify, or create derivative works of any of the material on our Site (including Services), except as follows:
By using the Site, you agree not to delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of the Terms & Conditions, your right to use the Site, including any account thereon, will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by the Company.
The Company name, any logo we display on our Site—and all related names, Services and solution descriptions, and slogans—are trademarks of and proprietary to the Company or its affiliates. You must not use such marks and logos without the prior written permission of the Company.
The Company is committed to complying with U.S. copyright law and to responding to claims of copyright infringement. We will promptly process and investigate notices of claimed infringement based on our user Training Material (as defined in Section 7.1) or our Services, and we will take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c). All notifications of claimed copyright infringement must be submitted to the contact information set forth at the end of these Terms & Conditions. IF YOU BELIEVE THAT YOUR WORK HAS BEEN COPIED OR USED ON THE SITE OR SERVICES IN A WAY THAT CONSTITUTES COPYRIGHT OR TRADEMARK INFRINGEMENT, PLEASE NOTIFY US IMMEDIATELY.
You may use the Site only for lawful purposes—for example, to view, request, and use our Services or make an online order—and in accordance with these Terms & Conditions. During your visits to our Site, you agree not to use the Site:
Additionally, you agree not to:
7.1 Description. During your testing, access to, or review of the Site or Services, you are solely responsible for any information, review, content, or other material you transmit to or through the Site or otherwise to us (collectively, “Training Material”). For example, if you make a social media post or online review concerning the Site or our Services, which is ultimately linked to us, you are responsible for the content of that Training Material. Moreover, you understand that, except for any personal information we may collect from you under the guidelines established in our Privacy Policy, Training Material to the Company are considered non-confidential and non-proprietary.
7.2 Ownership of Training Material. Notwithstanding our right to retain any data created by the Company or our applications or systems in the event that any fees for the Services are not paid in accordance with your order form or the MSA you execute with us (if applicable), for purposes of your relationship with the Company, you retain all ownership rights for all content and Training Material created in your interactions with the Site and us.
7.3 License Grant; Representations. In connection with any Training Material, you grant (to the extent available to you) the Company an unrestricted, irrevocable, perpetual, transferable, sublicensable, worldwide, royalty-free license to (A) make changes to our Site that may affect how content for your Training Material appear; (B) use and disclose metrics regarding your Training Material, in a format that does not include personally identifiable information; and (C) remove any Training Material that is in violation of these Terms & Conditions. You represent and warrant that: (i) you have the right to submit the Training Material to the Company and grant the rights set forth above; (ii) the Company will not need to obtain licenses from any third party or pay royalties to any third party for its use of the Training Material; (iii) the Training Material does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the Training Material complies with these Terms & Conditions and all applicable laws and regulations.
THE COMPANY TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY TRAINING MATERIAL.
We pride ourselves on providing an interactive Site that allows our visitors and prospective customers to view the Services in a professional environment. Accordingly, all Training Material or other information you post to or transmit through the Site must not: (A) contain any material that is defamatory, obscene, indecent, abusive, harassing, or hateful; (B) promote sexually explicit activities or pornographic material; (C) infringe any patent, trademark, trade secret, copyright, or other intellectual property right of others; (D) violate the legal rights (including privacy rights) of any others; or (E) promote any other illegal, immoral, or unlawful activity.
To enforce these Terms & Conditions and protect the integrity of the Site, we retain the rights to: (A) remove any Training Material for any or no reason, at our sole discretion; (B) take appropriate legal action in connection with any illegal or unauthorized use of the Site or our Services; and (C) terminate or suspend your access to all or part of the Site for any violation, or suspected violation based on evidence available to us, of these Terms & Conditions. Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site.
If the Site contains links or plug-ins to other sites and resources provided by third parties, these links and plug-ins are provided for your convenience only. We stress that we have no control over the contents of those third-party sites or resources, and we accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to our Site, you do so entirely at your own risk and are subject to the terms and conditions for such websites.
11.1 Disclaimer of Warranties. ALL CONTENT, INFORMATION, MATERIALS, PRODUCTS, AND OTHER SERVICES INCLUDED ON, OR MADE AVAILABLE TO YOU BY THE COMPANY AND THROUGH THE SITE, AND THE SITE ITSELF, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE CONTENT, INFORMATION, MATERIALS, PRODUCTS, OR OTHER SERVICES INCLUDED ON, OR MADE AVAILABLE TO YOU THROUGH, THE SITE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND ANY OF THE CONTENT, INFORMATION, MATERIALS, PRODUCTS OR OTHER SERVICES INCLUDED ON, OR MADE AVAILABLE TO YOU THROUGH THE SITE, IS AT YOUR SOLE DISCRETION AND RISK.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING ANY IMPLIED WARRANTIES OF CONFORMANCE TO THE STANDARDS OF TRADE FOR THE PRODUCTS OFFERED THROUGH THE SITE, AND ALSO DISCLAIMS ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF OTHERS.
11.2 Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE OR ANY CONTENT ON THE SITE. THIS LIMITATION EXPRESSLY PRECLUDES ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES AGAINST THE COMPANY, EVEN IF FORESEEABLE BY YOU OR US.
SUBJECT TO ANY SEPARATE MSA WITH YOU, IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED THE TOTAL AMOUNTS AND FEES PAID AND AMOUNTS AND FEES ACCRUED BUT NOT YET PAID BY YOU TO THE COMPANY FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LOSSES.
12.1 Entire Agreement. Except as specifically referenced or incorporated herein (for example, our Privacy Policy or a stand-alone MSA with us), these Terms & Conditions constitute the sole and entire agreement between you and the Company regarding the Site and your Service use. These Terms & Conditions supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Site and your access to the Services.
12.2 Severability. If any provision of these Terms & Conditions is held by a court or other authority of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, the provision will be eliminated or limited to the minimum extent such that the remaining provisions of the Terms & Conditions will continue in full force and effect.
12.3 Governing Law. All matters relating to the Site and these Terms & Conditions, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), will be governed by and construed in accordance with the laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction). Subject to the priority of the dispute resolution policy below, any legal suit, action, or proceeding arising out of, or related to, these Terms & Conditions or the Site must be instituted exclusively in the federal or state courts of the State of Utah. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
12.4 Dispute Resolution Policy. The parties agree that any dispute arising out of this Agreement must first be negotiated in good faith by the parties in an attempt to resolve the dispute without formal arbitration or filing of claims. If the parties cannot resolve the dispute through informal mediation within twenty (20) days of the date of their first negotiations, then the dispute must be submitted by either party (or jointly by both parties) for binding arbitration in Salt Lake City, Utah by applicable Utah law, and where not inconsistent, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at that time. After notice of the binding arbitration to both parties and selection of one or more neutral arbitrators, if either party fails or refuses to appear in the arbitration, the arbitration will proceed and the arbitrator(s) may render a final award on the basis of the evidence presented by the participating party. Failure by a party to honor the arbitration provisions of this Section, including through filing of suit or complaint in a court of competent jurisdiction without first proceeding through mediation and arbitration, constitutes a material breach of this Agreement.
You expressly acknowledge that arbitration does not permit class action proceedings, and by entering into this Agreement, you expressly waive any right to participate in a class action proceeding and you expressly agree to proceed in a non-class arbitration. Except as may be required to enforce an arbitration decision, you and the Company expressly waive any right to file any legal action in any other state or federal court or before any other tribunal, and any right to a trial by jury.
12.5 Attorneys’ Fees (limited scenarios). In the event that we are required to pursue legal action against you to protect the Company’s rights under Section 3 (IP Rights), Section 4 (Trademarks), or Section 6 (Prohibited Uses), you fully acknowledge, understand, and agree to be responsible for all collection costs, reasonable attorney’s fees, court costs, and a collection fee as allowed by Utah Code § 12-1-11 or other applicable law.
12.6 Contact Information. For questions about these Terms & Conditions or the Site, please contact: support@brainsparklms.com.